Kuala Lumpur War Crimes Tribunal Day 3

The American government has issued an arrest warrant for American citizen Yonas Fikre, 33, who is seeking asylum in Sweden. This comes, after the Ethiopia-born resident of Portland, Ore, publicly alleged illegal detention and torture while in the United Arab Emirates – carried out at the behest of the FBI.

The FBI response is predictable; they will not comment on individual investigations because of security and Privacy Act concerns. It won’t be drawn on Fikre’s accusation that it orchestrated torture.

Meanwhile, in Kuala Lumpur the tribunal seeking to convict George Dubya Bush, Dick Cheney and Donald Rumsfeld and five others for war crimes nears its conclusion.

The esteemed prosecution team make its final submission to a packed ‘court’ room.

Who is responsible for all the crimes committed on detainees in Bagram, Abu Ghraib, Guantanamo Bay and similar US bases?

Professor Gurdial Singh, refers to the case of the Japanese commander who led forces in the Philippines in WW2. Tomoyuki Yamashita’s troops, under his command, committed crimes against civilians. The international tribunal in Tokyo held him liable and convicted him. This decision was confirmed by the US supreme court who found that by virtue of his role as ‘commander of the troops’ Yamashita had to take positive action to end such abuses – or be held responsible for them.

Commanders then, in findings of abuse and crimes against other troops or civilians, are under the US supreme courts consideration guilty until proven innocent. The burden of proof lies with those in command to prove they took active steps to end any acts contravening international law, by their troops.

It follows that the chain of command can be held responsible in abuses that have arisen from the US occupations of the past decade, argues the prosecution. From the CIA operatives in plain clothes, to the paid bounty hunters in Kirkuk and Pakistan, from the interrogators in Bagram and Gitmo to the President of the USA, commander in Chief of the US army, all will be culpable legally if torture has taken place.

So did the prosecution here in KL make the case beyond a reasonable doubt?

The totality of the evidence reveals that Bush made executive orders that led to the subsequent abuses and crimes in Guantanamo Bay which then mutated and spread to other US military bases where detainees were (and are) held without due process. The Commander-in- Chief of the military not only expects his orders will be acted upon; updates from the battle field are regularly made to him. So why was nothing done to stop the acts of violence that were eventually revealed by the media to be taking place? Far from seeking to stop the abuse of detainees in US hands, Bush and his chain of command at the time, sought legal opinions in advance of the actions, to attempt to make them excusable if they ever came to light.

The Enemy Combatants Executive Order issued by the Bush regime said that (those it considered) Taliban and Al Quaeda members were no longer protected by the Geneva Convention. This order, led to ALL the subsequent abuses. Detention in Guantanamo Bay was another effort to remove detainees from any legal jurisdiction. Creating a deliberate ‘legal black hole’; a lawless environment, for which the Bush regime’s commands were responsible. Waterboarding was found to have ‘no lasting harm’ said Bush at the time. In his autobiography he says, that he, personally, approved the use of enhanced interrogation ‘techniques.’ The prosecution in KL emphasises the plural – “techniques”.

This then can be taken as a clear admission of guilt to the charge that Bush had full knowledge of – and indeed gave the command to – torture. US forces and their hired hands from Afghanistan to Iraq via Guantanamo and further afield into the bases and secret prisons of which the world knows nothing, are all answerable under international law to the Commander in Chief of operations.

All the witnesses who gave testimony at this tribunal (for their testimonies see the earlier article I wrote) were interrogated by the CIA, using the new techniques approved by Bush.

So, what has the Bush/Cheney defence been for these crimes; there appears to be only one game plan available to them and it is a weak one. ‘National necessity’, that in order to protect Americans, the norms of law applying to Muslim detainees, can and must be jettisoned. The only problem for Bush, Cheney and the entire chain of command in this shameful section of world history is that this ‘defence’ whilst emotionally appealing to Fox News viewers – has no basis whatsoever, nor relevance, in law.

Article 2.2 of the Geneva convention, says that there are no exceptional circumstances WHATSOVER which ‘may be used to withdraw the captives protections and rights.’

When the US Supreme Court said that the rights of any detainees could not be violated in its own investigation, Bush in his memoirs announced, arrogantly, that he ‘disagreed strongly with the court’s decision’.

A clear admission that he wished he could (and he did) disregard the law of the United States in relation to the protection of victims of war aka ‘captives’.

The case against Rumsfeld.

The infamous 2002 ‘torture’ memo, had a second document attached to it. A request for approval of new techniques by commanders at Guantanamo Bay.William Haynes was the General Counsel of the Department of Defense in Bush’s administration. He has also been General Counsel of the Department of the Army. It was Haynes, who sent the request for approval of the new techniques. Rumsfeld’s direct approval was needed for any torture to take place.

18 levels of techniques were sought; including solitary confinement of up to 30 days, 24 hour interrogations, use of fear of dogs etc. Also scenarios where a detainee was made to fear death or injury to others in order for information to be obtained by the interrogators.

No limits to the use of these techniques were sought nor any given.

Haynes, advised that all these methods and a dozen more should be made’ legally’ available. Rumsfeld was the secretary for defence at the time. He added comments to the memo in his own handwriting. The infamous ‘flippant’ note that he stood for 8 hours a day in his job so ‘why is standing (by detainees) limited to just four hours’ appeared in the margin proving he read the memos. In his memoirs, Rumsfeld says he regrets having scribbled the comment. Not because of the gross flippancy in relation to real human suffering being inflicted that it showed. But, because he was misunderstood. That, his note was just a statement of fact about his working hours – not a hint that more extreme measures should be effected by the Gitmo command.

Prosecutor Singh says; ‘When the beast is caught look at the contrivances; Pathetic.’

Any Secretary of Defence memo goes right down the field of command to the field level, where it will be implemented.

Rumsfeld, via the legal memos to Gitmo never placed limits on the interrogation techniques he was signing off on – nor their use in combination.

Rumsfeld has publicly contradicted himself saying the techniques were only meant for use against specific prisoners; those deemed the ‘worst of the worst’

Prosecutor Singh of the persecution said; ‘This is a bald faced untruth’.

Rumsfeld later said he was ‘troubled’ by reports of combo techniques used on detainees. Saying it looked as if methods went ‘beyond’ the original orders.

Yet, his department was repeatedly warned of the mistreatment of detainees. There was public knowledge of the methods used at Gitmo. It is inconceivable that Rumsfeld did not know of abuses.

Those, who issue the action advice are as responsible as those who carry out the orders. The orders were handed out in the full knowledge that a crime would be carried out as a result. Thus, the 18 Interrogation techniques, are linked directly to Washington. Rumsfeld was regularly involved in talks about these methods.

In Rumsfeld’s memoir he says of the eventual media exposure of torture, of humiliation techniques of sexual abuse in Bagram and beyond that they – ‘occurred on my watch….I take full responsibility.’

But where is the responsibility? Empty words.

‘The fruit of the poison tree is poisoned’ says the prosecution, here in KL. The logic of the original memos, stayed in effect for over a year, until the Abu Ghraib scandal, caused them to be repealed.

The Slazenger Report of 2004 concluded that the entire chain of command, including Rumsfeld, was responsible for the abuses and degrading treatment of detainees in Abu Ghraib, and elsewhere.

Such abuses were not, bad apples, but ‘systemic acts and crimes’.

At the time of the abuses an ICRC report found that criminal acts were considered ‘acceptable’ by coalition forces.

The defence case, as laid here in Malaysia, is more that weak it is, in legal terms, childish.

Rumsfeld approved the basis of the report by a working group in which the definition of torture was relaxed without legal justification, creating an environment where torture was acceptable.

The charges against the Bush Administrations VP, Richard Bruce Cheney.

That he knew everything that was going on.

The court is shown a clip from a US news show where Cheney is interviewed live. He states that he would ‘strongly support using it again’ when asked about the torture method of simulated drowning known as water boarding.

Video shown of Dick Cheney on specific point:

Would he approve secret prisons he’s asked?

DC: Yes

Did he stand by other methods of torture (deemed illegal under international law)

DC; Yes..It was controversial at the time. It was the right thing to do.

Prosecution uses this as a clear admission of guilt in absentia, here in Malaysia.

The legal advice sought by Bush et al was sought not just to be mulled over – but in order that it be acted upon.

Legal advice in 2002/2003 and 2004 for the the illegal techniques came directly from the office of legal council in the Attorney Generals office. The AG webpage clearly states that all executive orders (from Bush etc) and proclamations proposed to be given by the Presidents office are reviewed. In short, a legal check must be made that Presidential orders conform to the law.

Here again the team surrounding Bush tries the weakest of manoeuvres to wriggle out of legal culpability for its heinous crimes. The legal office for the US administration has tried to say that the advice they gave on torture at the time was ‘merely exploratory.’ That they were just looking at the outer limits of legality. This is incorrect and deliberately misleading. All their written advice- is legally binding on the Presidential Office. It is not merely read and considered. The President MUST act on it.

Prosecutor Singh, calls Bush, Cheney and Rumsfeld the ‘Unholy trinity’. Few here, including the victims of torture giving evidence would disagree.

The political memoirs of arrogant, former world leaders are proving a gold mine for legal teams seeking justice when they retire from office. Thus, Rumsfeld, from his book; ‘Administration lawyers fully vetted the CIA’s programme, giving them the green light to proceed.’ It was the CIA’s programme which was applied and that stripped human beings of their dignity and rights.

Former CIA director John Tenet, in his memoirs, recounts that the CIA had to wait for legal approval to be given before they could proceed with the new interrogation techniques. He recounts:

….despite what Hollywood would have you believe; in times like this you don’t call in the tough guys you call in in the lawyers.

The clear guidance that was sought for the new torture methods, came in August 2002 – from the sixth accused in this case, Rumsfeld’s lawyer.

The message all the implicated lawyers gave to Guantanamo interrogators at the time of a visit to the base, was; ‘do what is needed to be done.’

And this advice didn’t occur in an awareness vacuum.

The orientation visit that Washington lawyers went on took place well before further illegal techniques were requested. Their jolly holiday included watching interrogations. So, the spurious claim that their subsequent advice to highest echelons of power was just explorative and not necessarily to be used is a joke. These memos kick-started all the acts that violated international law.

The techniques in Gitmo migrated to Iraq, as has been reported here from the witnesses, former detainees. The hooding, electrocution, nudity, denial of toilet use.

Terrible advice was firstly sought, then given and finally acted upon

So are legal advisers responsible if other act on their advice?

Listen to what the Nuremberg trials said; that legal advisors,who prepare erroneous advice, which then leads to war crimes – are themselves subject to trial.

In the Nuremberg trials after World War Two, 16 lawyers were charged for advising the Nazis. All but four were found guilty and convicted.

Senior a senior US judge was asked by the prosecution counsel the following question;

Does a delinquent lawyer share the same responsibility as a rogue interrogator?

Answer; If the legal advice they wrote, opened a door to abuse, even torture, then in theory the responsibility would go back to the author of the advice.

Bush lawyers bent the laws.

The star of this trial has undoubtedly been Professor Francis A. Boyle, scholar in the areas of International Law and Human Rights. His no nonsense presentation of the relevant judgements from the Nuremberg Charter and his in depth knowledge of the US army Field manual (which forms the basis for all legally permitted and forbidden behaviours of the US forces) has been compelling. And damning for Bush, Cheney and all their advisors on trial here.

In his final summation, Boyle makes it clear that legally, the Commander at the top of the tree IS responsible for the crimes of his subordinates. People, not in us military uniforms, were committing war crimes in Iraq, Afghanistan and Guantanamo, who were under US command. The US government at the time was the ‘Belligerent Occupant’ of Iraq, thus with regard to the torture that took place there , (whether by the CIA or Iraqi torturers or soldiers or contractors) those crimes are directly attributable to those at the top of US command. Beware Obama.

The Field Manual also says in the index ‘Torture forbidden.’

To avoid prosecution; ‘All these lawyers had to do was open the manual look at the index and see ‘torture forbidden.’ Says Boyle

Page 107 of the Field Manual, paragraph 270, in bold and capital letters states the; ‘prohibition of coercion – no moral or physical coercion’ can be exercised against a protected person.

i.e.; You cannot threaten to rape torture or murder a relative to get information from captives.

And so it goes on.

Even in the darkest hour of the Vietnam War no one in the US administatration argued for the right to torture anyone.

Even with the Viet Cong, the US authorities said that they would observe the rights of detainees and prisoners as outlined under international law.

Chillingly, the Pentagon has now clearly hinted that its Field Manual with so much of the Nuremberg charter on the protection of civilians in combat zones and captives, incorporated in it, has been up for review. Somewhere in the dark annals of the Pentagon, a revised version awaits the US armed forces. And the world.

The judgement is expected this afternoon.

* Please note there was an error in this article mistakenly saying Gitmo commanders were also accused this is incorrect it was the Washington leaders and legal advisors only.

2 Responses to Kuala Lumpur War Crimes Tribunal Day 3

“Somewhere in the dark annals of the Pentagon, a revised version awaits the US armed forces. And the world.”

They will continue doing what they have practiced at Gitmo, in Iraq and elsewhere but the Field Manual will get vaguer and easier to “interpret.”

Great report, Laura.

And now that I have spent time reading it I must return to what is important and currently consumes the US media: the fabulous dinner party given by Clooney for Obama that raised $15 mil. I think they were served artichoke.